|
COPYRIGHT 2001 Harvard Society for Law and Public Policy, Inc.
Biological terrorism is a truly despicable subject, raising nightmares of primal fear. Disease -- plague, smallpox, and other decimating maladies -- is dire trauma embedded in humanity's collective consciousness. Now, when the threat of thermonuclear holocaust may be ebbing, a few zealots or criminals can kill thousands (or more) and destabilize social order by revealing that no government, even that of superpower America, can protect its citizenry. A biological attack means that everyone is vulnerable. This is terrorism nonpareil.
This Article's agenda is modest: Set forth legal initiatives that might reduce the risks of bioterrorism, recognizing that those initiatives must be combined with nonlegal policies. For example, more money to develop sensors and to train medical personnel could be advantageously spent without proposing or amending legislation or regulations. Legal initiatives should be seen, therefore, as only part of a larger policy response to reduce terrorism opportunities, strengthen detection, focus resources, and deter those terrorists who are averse to harsh penalties.(1)
The agenda here is also overt. Law's contribution to preventing bioterrorism, though limited, is crucial. And time, unfortunately, is not on the side of the angels. This Article, therefore, is a call to action.
Part I of this Article synthesizes the vast literature on bioterrorism,(2) describing various diseases that could be used and how those diseases might fulfill different objectives. Part II and Part III develop this Article's thesis that threats of bioterrorism call for a two-dimensional set of carefully tailored policies to reduce biological threats, but do not justify radical new overtures. Proposed regulatory modifications can restrict the availability of useful materials and equipment and increase the cost and likelihood of detection. Part II advances a regulatory agenda, mindful to not over-burden the bio-pharmaceutical industry, that would raise barriers to obtaining pathogens and weaponization technology. Since these regulatory measures are not perfectly prophylactic (i.e. terrorists might still gain deadly agents), modifications of law enforcement policies should detect, investigate, and stop terrorists who overcome the regulatory barriers and prepare weapons. Part III discusses the unique problems that clandestine biological terrorism presents for law enforcement and recommends measures to better identify bioterrorism threats without overstepping civil liberties and privacy rights.
Put simply, the best strategy is two-pronged: Deny access to biological weapons capabilities, and-if capabilities are obtained -- apprehend the terrorist before attack. Legal measures offer no guarantee for preventing bioterrorism, but the measures described here might substantially diminish risks when combined with enhanced pathogen-relevant research and development, improved planning and communication among officials, and advanced intelligence capabilities.
Many topics tangentially relevant to biological terrorism are not discussed here, either because law cannot significantly address them or because, even if addressed, law cannot materially diminish the risks of biological terrorism. This Article will not discuss the broad array of issues that span counter-terrorism policy.(3) Neither will it assess the merits of promoting enhanced research on pathogenicity nor consider the appropriate levels of stockpiled vaccines; these questions are better addressed by the medical and pharmaceutical communities.(4) This Article will not discuss the need for enhanced foreign intelligence; crucial information is not publicly available, and legal measures would not make much difference.(5) Nor will this article address preparations to respond after an attack happens; those measures are necessary but do not serve to prevent the attack.(6)
A vast set of issues, substantially outside the scope of this Article and meriting separate attention, concerns the international proliferation of biological weapons and negotiated efforts to stanch their spread.(7) Russia had an active biological weapons research program into the early 1990s; many experts believe that the Russian military actively pursued a biological weapons program thereafter and may still be doing so.(8) Even if Russia is not actively pursuing biological weapons capabilities, there, is the risk that its facilities are leaking equipment and perhaps even pathogens to other States or terrorist groups.(9) Iraq's biological weapons program was uncovered by United Nations inspectors in 1995.(10) Many experts believe that Iran has a military biological program even if it does not now have an offensive weapons capability.(11) Other countries currently suspected of having programs include: China, Taiwan, North Korea, Syria, Egypt, Cuba, Israel, former Soviet States, the United States, and Japan.(12) According to recently-substantiated allegations, a 500-liter medical fermentation device was sent from the United States to a pharmaceutical plant in China suspected of manufacturing chemical and biological agents for military purposes.(13) Lastly international treaty negotiations are proceeding actively for a new protocol to the Biological Weapons Convention,(14) but that protocol does not explicitly confront threats of terrorism.(15)
I. UNDERSTANDING BIO-TERRORISM
Because a catastrophic bioterrorism attack has not yet happened, trying to understand the phenomenon entails some speculation based on reasonable extrapolations both from the scientific understanding of pathogens and from the social science understanding of terrorist behavior. There has been only one notable effort to develop and employ biological capabilities for terrorist purposes, which was by the Japanese cult Aum Shinrikyo.
Aum devoted vast sums of money, time, and considerable expertise to the task of making biological weapons, but it was not successful. Before puncturing bags of sarin nerve gas on Tokyo subway trains on March 20, 1995, killing twelve people and injuring more than 5,000, the cult had sought to acquire a wide range of weapons, including biological weapons. In April 1990, Aum attempted to attack the Japanese parliament with botulinum toxin aerosol.(16) In 1992, Aum sent a mission to Zaire to assist in the treatment of Ebola victims in order to find a sample of the Ebola strain to take back to Japan for culturing purposes. In June 1993, the cult tried to release poison at the wedding of the crown prince. Later that month, Aum attempted to spray anthrax spores from the roof of a building in Tokyo.(17) All these attack,; were unsuccessful and resulted in no casualties. The consequences might have been drastically different had the weapons been properly disseminated.(18)
The cult built weapons under the guidance of well-trained biologists and chemists. They created a sophisticated biological research facility without attracting the attention of the Japanese or other governments. When Japanese officials investigated Aum's compound after the 1995 attack, they found large amounts of equipment indispensable to cultivating bacteria and viruses, peptone (a substance used to cultivate bacteria), and books and materials on the production of botulism, cholera, and dysentery. At Aum's site in Naganohara, officials found a four-story concrete facility equipped with a "clean room" with specialized ventilation systems and a sealed room to protect cultivated bacteria from leaking. In connection with these operations, Aum produced illegal drugs for their own use and for sale to others.(19)
In January 1995, an Oregon company sold Aum molecular modeling software that simulates molecular experimentation without the need for actual laboratory experimentation. This software is covered by export restrictions to countries such as China but not to Japan. Aum could have used this software to test theoretical designs for toxins. In March 1995, Aum supporters contacted a Missouri company that produces computer software for use in designing new therapeutic drugs but that can also be used to research and develop biological toxins. Although it harbored suspicions, the Missouri company installed software on a computer provided by Aum.(20) Five days before the Tokyo gas attack, authorities discovered three attache cases containing a small tank to hold liquid, a small motorized fan, a vent, and a battery. The cult had at least two radio controlled drone aircraft, and they were seeking hundreds of small fans as well as thousands of small serum bottles.(21)
The Aum Shinrikyo experience raises several questions addressed in the remainder of this Part. First, why would a terrorist use biological weapons? Second, what pathogens could or would likely be used? And third, could an attack be concocted?
A. Why Attack with Biological Weapons?
Why would anyone use disease to cause mass death? How difficult is it to use biological agents as weapons, assuming the motivation to do so? If biological weapons are used, what casualties can be reasonably expected?
Biological weapons have three advantages from a terrorist's perspective. First, they (as well as chemical weapons) offer an optimal death to cost ratio. Second, they are virtually undetectable and can be handled with relative ease by properly trained and inoculated persons. Third, they offer the potential for mass panic that may uniquely serve a terrorist's purposes.
1. Inflicting Casualties
If a terrorist wants to kill thousands of people, biological weapons merit serious consideration. A nuclear weapon, by comparison, can certainly create far more devastation, but making a nuclear weapon is ilar more difficult and expensive, and smuggling it poses a far greater risk of detection.(22) At the other end of the weapons spectrum, firearms are inexpensive and readily available, but they have the capacity to kill only a few dozen people before being stopped. Explosives present more technical obstacles than firearms, but offer the potential for inflicting far greater casualties. The failed attempt to blow up the World Trade Center building and kill thousands illustrates the difficulties inherent in this tradeoff.(23) The calculus of terrorism, therefore, leads inexorably to biological and chemical weapons. Comparatively, while chemical weapons are easier to make and use, biological weapons are less detectable, less dangerous to the terrorist, and -- except in a few scenarios -- have greater killing capability.
Estimates vary widely as to the numbers of dead and sick from a bioterrorist attack. Projected seven-figure casualty estimates, based on multiplying the quantity of pathogen necessary to kill an individual, are flawed. Under this methodology, for example, a lethal dose of Type-A botulina toxin can be prepared in concentrations of ten billion microorganisms per gram; accordingly, eight ounces is enough to kill every living creature on Earth. This arithmetic misleadingly assumes that these doses will be equally and effectively disseminated. But most pathogens disseminated among a large population would not be ingested at all and would die harmlessly from natural causes. The pathogens that are ingested would tend to be concentrated in a fraction of that population, and even some of these persons would, for various reasons, not get sick.
Nonetheless, there are reasonable scenarios involving dissemination of
pathogens in confined spaces that predict over ten thousand casualties; in extraordinary circumstances, casualties in excess of 100,000 are not fanciful.(24)
2. Non-Detectability and Manageability
Besides their capability to cause mass casualties, there are other good reasons (from a terrorist's perspective) to use biological weapons. Pathogens are undetectable or nearly so. Lethal pathogens may be attractive to foreign terrorist organizations or even rogue States seeking to cause catastrophic injury to the United States without exposing themselves to reprisal. Pathogens can be brought into the country by a single individual and can be smuggled through airports or customs checks. Once here, they can be propagated into enormous quantities. Even their use is initially undetectable. An epidemic can be initiated, and it may be days before symptoms are manifest; even then, the attack may be mistaken for a natural outbreak.(25) Terrorists could easily have sufficient time to flee the scene of the attack, and perhaps the jurisdiction altogether, before law enforcement officials learn that a crime has been committed. The time-lag between release and effect on humans thus reduces the risks of a perpetrator being apprehended.(26) Another contribution to anonymity is that dissemination of pathogens need not leave identifying markers that could be traced back to the perpetrators. No other weapon offers a comparable capability to inflict catastrophic disruption anonymously.
Despite their disease-causing capabilities, some pathogens can be produced and handled safely by persons who are properly equipped, knowledgeable of the risks, and perhaps inoculated against the disease.(27) Starting with a small seed culture, terrorists could easily generate a stockpile and can work with it, carry it, and distribute it without undue risk. Some, but not all, pathogens have the ability to reproduce in the target population. If sufficiently contagious, an attack would only have to be against a small group (perhaps at an airport) who would then do the terrorists' work for them by carrying it out to a wider population. No other weapon offers similar capabilities to spread itself. Therefore, the problems of dissemination can be overcome to some degree by creating a more potent agent.
3. Panic Potential
Arguably the greatest advantage of biological weapons is their ability to cause mass panic. Bombing a large and heavily populated building is terrifying, as is releasing chemical weapons in a confined space such as a subway, but these attacks are geographically limited. A biological attack makes everyone vulnerable, and this insecurity is the terrorists' primary motivation. Moreover, even if not empirically justifiable, humanity fears disease not only for its ability to kill but for the horrifying way in which it kills. While we have no experience with a catastrophic terrorist attack, memories of past epidemics incite fears of future outbreaks. Thus, even if a biological attack kills only a relatively small number, it is likely to generate panic. This shredding of the fabric of the community and exposure of society's vulnerability, perhaps on a global scale, is the incentive for committing such heinous crimes.
Pathogens may appeal to domestic terrorists who have an anarchic or mystical sense that the modern era is corrupt, excessively regimented, or materialistic. For those with a profound sense of alienation or those motivated by a distorted sense of religious faith, disease has a unique Biblical history suggesting that God has often inflicted a scourge on the sinful. Inflating the death toll may be seen as performing a sacramental act, manifesting divine retribution that morally justifies mass murder.
B. What Pathogens Might Be Used?
The Centers for Disease Control (CDC) lists thirty-six pathogenic agents, including seven bacteria, thirteen viruses, three rickettsiae, one fungus, and twelve toxins.(28) Bioengineered variations of these agents, or development of new agents altogether, could expand this list.(29)
1. Likely Pathogens
This Section briefly describes the agents most often cited as potentially weaponizeable and briefly explains their relevant characteristics.(30) It must be noted that no agent is perfect; a terrorist must therefore choose among various characteristics, including:
* Pathogenicity of the agent (how likely the agent is to kill its victim): Agents can be chosen to sicken, incapacitate, or kill; to spread from person to person or to affect only those initially exposed; and to be susceptible or resistant to medical treatment.
* Degree to which the agent is contagious or infectious: The infectiousness of the agent is directly correlated with the mode of weaponization. If the terrorist intends to spray dust an area and infect via an aerosol cloud, then the likelihood of successful delivery is less than direct injection. Therefore, a more infectious agent would be more desirable.
* Process of contagion and resistance to protective measures or cures: The terrorist will also choose an agent that is known to be transferable or containable, depending once again on the terrorist's targeted group. For instance, if the intent is to cause a widespread outbreak, an agent that can be transmitted by coughing or contact with others would be more favorable than one that cannot be transmitted by human to human contact. Further, agents have variable lengths of incubation periods, some allowing ample time for vaccination once an outbreak has been identified. Also, agents differ in the length of time between the onset of symptoms and death.
* Degree of lethality (how many people are likely to be affected): In choosing the appropriate agent to execute the mission, the terrorist likely would consider the lethality of the agent. For instance, agents differ in incubation stages, some acting on their hosts quickly and others not showing signs for several days. Moreover, agents differ in their contagion capabilities. Therefore, when the intent is to indiscriminately' pass the illness to a large number of people over a period of time, a less lethal but highly infectious agent may be chosen.
* Potential risk to the terrorist himself. The terrorist, through his knowledge of the agents and their production methods, may consider the risks of handling that the agent poses to his health in all the steps until it is disseminated. Those whose scientific proficiency bolsters their confidence in handling pathogenic agents may be more willing to weaponize highly pathogenic agents as compared to those who are wary of the unknown.(31) It may be very important that there is an available vaccine with which the terrorist may vaccinate himself.(32)
a. Smallpox
The smallpox virus is among the most dangerous organisms that might be used by bioterrorists.(33) It is virulently contagious, often fatal, and spread through inhalation.(34) Smallpox was responsible for hundreds of millions of fatalities before widespread vaccinations were thought to have eradicated it. In 1986, the Executive Committee on Orthopox of the World Health Organization unanimously decided to destroy the last strains of smallpox left in the world except for two samples in Moscow and Atlanta.(35) However, unsubstantiated but highly disturbing reports from Russia suggest new concerns.(36) This is especially frightening because health authorities, believing the disease to have been virtually eradicated, have discontinued vaccination programs, leaving current populations highly vulnerable to a terrorist attack using smallpox.
b. Anthrax(37)
Anthrax (Bacillus anthracis) is often mentioned as the biological agent of choice. Anthrax is a spore that, if inhaled even in extremely low quantities, is nearly always fatal unless the patient is quickly given huge quantities of antibiotics.(38) Ingestion leads to fatigue, coughing, fever, and chest pains; death comes within twenty-four to thirty-six hours.(39) Anthrax has important virtues from a terrorist perspective. It occurs naturally in the soil. Herbivorous animals such as sheep or goats ingest spores while grazing. Seed cultures of the spores can be taken from samples of the wool or skin; taking more samples increases the likelihood of success.(40) Only small samples would be needed, perhaps no larger than a postage stamp. Although anthrax is more common among Caribbean and Eastern Mediterranean countries, it is not impossible to find infected animals in the United States.(41) As a weapon, the primary virtue of anthrax is its lethality; some experts assert that as little as a single gram, efficiently distributed, could kill more than one-third of the United States population.(42) Another advantage is that it is an endospore and thus highly resistant to humidity, pressure, or temperature. Moreover, anthrax can be easily propagated. For these and perhaps other reasons, anthrax has been by far the most often pathogen allegedly used in the United States, although most if not all of these alleged uses were hoaxes.(43)
Anthrax, however, has various disadvantages as a weapon. The fact that it is a spore and hence large relative to other agents means that it is difficult to aerosolize for weapons purposes, and, once released, falls rapidly to the ground, thereby diminishing the opportunity for inhalation. Furthermore, anthrax is not contagious except by direct contact. To kill many people would therefore require widespread dissemination. There is a licensed vaccine which, although the subject of considerable controversy in connection with its use during the Gulf War,(44) can be effective if administered soon after exposure. This vaccine would, of course, enable a potential terrorist to handle anthrax without risk of infecting himself.
c. The Plague
Plague (Yersinia pestis) is a contagious bacterium. Only slightly less lethal than anthrax,(45) it is also naturally available and can be scraped from dead animals. In North America, plague is found in certain animals and in their fleas from the Pacific Coast to the Great Plains, and from southwestern Canada to Mexico.(46) It is more difficult to grow than anthrax, requiring a blood agar, but not so difficult as to preclude its potential weaponization. A licensed vaccine that would allow a terrorist to protect himself is available. However, this vaccine is used in animal experiments and will provide no protection against the aerosol exposure; a terrorist who chooses an aerosol route of dissemination would have to immediately take the antibiotic doxycycline.(47) Unlike anthrax, plague is highly communicable; an infected individual may spread infection by coughing. Its capability to lead to an epidemic may be an advantage to someone seeking to generate mass havoc, but it may be a disadvantage to someone planning a more strategic strike. In contrast to anthrax, plague bacteria have the disadvantage of being subject to environmental stress, complicating dissemination.
d. Haemorrhagic Fevers
Rift Valley Fever (RVF) is a viral disease prevalent among livestock. The virus is spread by mosquitoes to animals. Infected animals then become new hosts for other mosquitoes that in turn become additional vectors for transmission. These mosquitoes can then infect humans. RVF victims tend to experience symptoms associated with a mild illness such as fever, dizziness, and back pain. In some people, the illness can progress into hemorrhagic fever, encephalitis, or ocular disease, but most patients recover from exposure within a few days. A terrorist's mishandling may lead to unintentional exposure, with no known treatment.
Marburg Hemorrhagic Fever affects humans and other primates in very localized areas. Like the plague, the virus is highly infectious. Humans can contract the disease from handling monkeys, from droplets of body fluids, or contact with contaminated people or other sources of infectious blood or tissues. Symptoms appear five to ten days after exposure. Death ensues rapidly. This; virus may appeal to the potential terrorist for its 25% mortality rate, but knowledge of the virus and proper handling are necessary to prevent risk to oneself.
The ebola virus is known for its horrific symptoms: vomiting, chest pain, and bleeding from virtually every orifice.(48) The disease is spread through close personal contact with an infected victim. Transmission has also been known to take place through hypodermic needles. The ebola virus is similar to the Marburg virus but has a lower infection rate. Humans are susceptible to several different strains; the more lethal strains are the less contagious.
e. Tularemia
Tularemia (Francisella tularensis) is an extremely lethal bacterium spread by insect bites from rodents to humans. A virulent form (fatality rate of approximately 5%) is endemic in much of North America and can be obtained from dead animals; a pneumonic form, which would result from an intentional release, would likely have a greater mortality rate.(49) Propagation would require special media as tularemia does not typically grow in standard blood cultures. It is not transmitted person-to-person, eliminating the possibility of epidemic. Treatment is typically effective by common antibiotics within seven to fourteen days of infection, making treatment and containment by public health authorities possible. Moreover, like plague, it is subject to environmental stresses.
f. Venezuelan Equine Encephalitis
Venezuelan Equine Encephalitis (VEE) is a mosquito-borne virus. A large controlled mosquito population could feed on an infected animal and become the vector to transfer the virus to humans. Susceptibility to this disease is nearly 100%; however, its mortality rate is less than 1%, making it an unlikely choice for a weapon. An infected human remains infectious for mosquitoes for at least seventy-two hours after symptoms, enabling secondary spread of the disease. Infected individuals who do not seek treatment may progress into encephalitis, which is marked by convulsion, coma and paralysis. A human vaccine is available through USAMRIID.(50)
g. Ricin
Ricin is an inanimate protein toxin that may be readily produced from castor beans. It acts as a cellular poison that is lethal either through inhalation or through epidermal absorption. A tiny quantity on the skin rapidly causes death. Ricin may be used to poison water or foodstuffs or lace injectiles. Ricin has a long record of use by assassins because the victim need only be poked by an object coated with the toxin.(51) If ricin is inhaled, fever, coughing, and nausea occur within eight hours and death ensues within thirty-six to seventy-two hours. Notably, there is no treatment; once a victim is poisoned, death will follow. There is no vaccine, so a terrorist would have to be extremely sophisticated to avoid suicide. Since it is non-contagious, it has no ability to provoke an epidemic, yet it may be the most easily disseminated pathogenic agent and therefore one of the most effective means of committing murder.
2. Choosing the Appropriate Pathogen
No single agent is ideal for terrorism. A terrorist must make choices depending on what he is trying to accomplish as well as his level of technical knowledge and equipment.
If the goal is to murder an individual or small group of people, ricin may be uniquely suitable....
Read the full article for free courtesy of your local library.
|
Bookmark this article
Print this article
Link to this article
Email this article
Digg It!
Add to del.icio.us
RSS
